The Law of Accessible Websites and Applications: Richard Hunt

>> AMBER HINDS: Welcome to WordPress Accessibility Meetup, The Law of Accessible Websites and Applications with Richard Hunt, who is an attorney and a shareholder at Hunt Huey Law Firm. A few announcements. If you have not been here previously, we have a Facebook group that you can use to connect between meetups. You can find that if you go to facebook.com/groups/wordpress.accessibility, or if you just search WordPress Accessibility. It’s a great place to share what you’re working on, get answers to questions, answer other people’s questions. Just connect in between the different events that we hold. Everyone always asks, is this being recorded? Yes, it is being recorded. It takes us about two weeks to get the live captions, edited, and have a full transcript, and then we will post that up on our website. You can find upcoming events and past recordings in one place if you go to equalizedigital.com/meetup. The other way to get alerted when the recording is available is to join our e-mail list. We send out a weekly e-mail that includes both links to the recaps from meetups and also news related to web accessibility around the web, not just posts on our blog, but other ones that we found that are interesting to share. You can join that at equalizedigital.com/focus-state.

Then finally, we do post them in audio format on our podcast at the request of some folks. You can find that, as well as podcast episodes with myself and my two partners, Chris and Steve, where we talk about accessibility and craft beverages if you go to accessibilitycraft.com. This meetup does rely on sponsors to help us cover the cost of making it accessible with live captions and post-event transcription. We are seeking additional sponsors. If you are interested in learning more about that, or if you have any suggestions for the meetup, or you need any additional accommodations to make it work for you, please e-mail us at meetup@equalizedigital.com.

I’ve been speaking for a while, but I haven’t introduced myself yet. I am Amber Hinds. I’m the CEO of a company called Equalize Digital. We are the organizer of the WordPress Accessibility Meetup. We are a mission-driven organization focused on WordPress accessibility. We have a WordPress plugin called Accessibility Checker that scans for accessibility problems and provides reports in the post-edit screen to help make building accessible websites easier. You can learn more about it at equalizedigital.com. We’re on many of the social media platforms if you just look for Equalize Digital.

We do have one sponsor that I would like to thank today, and that is GoDaddy. GoDaddy’s mission is to empower a worldwide community of entrepreneurs by giving them all the help and tools they need to grow online, including a simpler, safer WordPress experience. GoDaddy provides a managed WordPress experience that is as easy as it is effective. The latest version of WordPress comes pre-installed with exclusive themes, plugins, and tools to get you up and running quickly with automated backups, updates, and malware removal so that our pros can spend less time on monotonous maintenance and more time building their businesses.

GoDaddy has very generously sponsored our live captions for this evening, so thank you to them. You can learn more about GoDaddy if you go to GoDaddy.com. We also always like to encourage our attendees, if you are willing, on any social media platform that you are on you can generally find GoDaddy. If you can tag them or tweet at them or whatever it is on your platform, a thank you for sponsoring live captions. Tell them that captioning is important, and you appreciate that they are helping to make it possible. That encourages them to want to continue sponsoring. Please consider doing that if you are willing.

We have a couple of upcoming events that I want to make sure everyone is aware of. Our meetup on Thursday, March 6th at 10:00 AM Central Time will be Piccia Neri. She will be talking about captions. The title of that event will be, We Need to Talk About Captions. The same meetup in February, on Monday, February 17th at 7:00 PM Central Time will be From Concept to Code: Communicating Accessibility in the Design Handoff with Danielle Zarcaro. They will be presenting about how designers can communicate accessibility needs to developers as they hand off their designs to be built.

Then the other thing that is worth noting is that on Thursdays at 11:00 AM Central Time, I have been doing some accessibility remediation live streaming to YouTube. You don’t have to register for those. You can just sign up. If you are interested in seeing what it’s like to watch a real WordPress website get remediated over time, you can tune in for those or find more about them if you go to equalizedigital.com/events.

I am very excited to introduce today’s speaker. Let me add a spotlight so he pops up here. Richard Hunt is our speaker today. He is a board-certified civil trial lawyer with more than 40 years of experience representing businesses and individuals in litigation, arbitration, and mediation. Richard has a nationwide practice focused on litigation and consultation concerning the Americans with Disabilities Act and the disability rights provisions of the Fair Housing Act. His blog, Accessibility Defense, which you can find at accessdefense.com, is a research for legal and accessibility professionals interested in the latest developments in accessibility law or a deeper understanding of the issues related to the laws.

Welcome, Richard. We are so excited to have you presenting to us today.

>> RICHARD HUNT: Well, thank you very much. I will share my screen so that you don’t have to see me so close up.

>> AMBER: While you are sharing that, I’m just going to give one quick note for our attendees that we will be using the Q&A feature today. I am going to go off screen, let Richard take over, but I will come back at the end and we will ask and answer all of your questions. Please make sure you put those in the Q&A feature. If you put them in the chat, sometimes they get lost. Thanks so much, Richard. I’ll let you take over from here.

>> RICHARD: Thank you very much, Amber. I’m really excited to have an opportunity to speak to this group. My audiences, when I talk about website accessibility, are usually lawyers, sometimes business owners, but to actually talk to the people who make accessibility happen is interesting and new for me. I’ll try not to tread on your toes too much, stick to the law, but I will say some things that I’ve learned about accessibility in the course of looking at the law.

First, me. Here’s a picture, it proves that I own a suit, and you can therefore believe everything I say, and some contact information. I’ll put this up again at the end. I’d be happy to correspond with any of you who have small questions. If you have big questions, I’ll correspond with you, but I will send you a bill. An important disclaimer. My wife, Jean, is a specialist in legal ethics and therefore reminds me that I’m supposed to remind you that this webinar is not creating an attorney-client relationship between me and you. I’m not going to be giving any advice on specific matters or issues or clients.

I will ask you to do me a favor. If you have questions that you put into the Q&A, please do not mention the name of the company or companies involved. We don’t need to be telling the world that so-and-so has an inaccessible website and you’d like to know what to do about it. We’ll keep it very general in the Q&A and I will keep it very general in my presentation.

Here’s our agenda. This webinar is going to be perhaps a little different than webinars I give for lawyers. First, I’m going to tell you the bad news– Well, I have some bad news and good news to start but you’re going to hear that there is a lot of uncertainty. I will not be here tonight telling you a bunch of rules, telling you a bunch of things that you have to do. What we’re going to do instead is we’re going to plow through the uncertainty and come out with what I think will be some useful information about what you can do and should do, but not a lot of absolutes here.

Our second part of the agenda is to discuss what accessibility means. Those of you who are familiar with the Web Content Accessibility Guidelines may believe that you know the answer to this question. I’m going to explain why this, among other things, is an area of considerable uncertainty. I’m going to talk about software solutions, what they can and cannot do. The good news, I think, just to jump ahead a little bit for the development community, is that you’re not going to be replaced by robots any time soon for very solid reasons. Artificial intelligence, even very good artificial intelligence, is not going to replace developers.

Finally, I’ll wrap up with litigation as it stands now and where we think it is going to go in the future because that is one of the main things that people have about accessibility. As a lawyer, frankly, that’s the concern I hear most about. I never get calls from people who say we’re worried about disabled people using our website. It’s almost always somebody sued us because our website’s not accessible. We’re going to talk about litigation because that is important to your business.

First, let’s start with the bad news and good news. The traditional way this joke is presented is you start with the good news and then the bad news is the joke. That can be funny but depressing. I’m going to start with the bad news and then we’ll get to the good news and see if that’s a more uplifting experience. In respect to accessibility law, the bad news is there are a lot of laws. We have Section 508 of the Rehabilitation Act, which requires accessibility for electronic assets of the federal government and some federal contractors. We have the Air Carrier Access Act, which mandates accessibility for airlines and the part of airport terminals that they control.

We have the Congressional Accountability Act, which requires that Congressional offices be accessible. You won’t be surprised to hear that that was the very last of the accessibility laws to be passed. Congress waited a good 20 years after the ADA was passed before they applied it to themselves. We have the Americans with Disabilities Act, which is the law that most people have heard the most about. We have 50 state laws that are similar in some respects to the ADA.

The ADA is a federal law that applies to all 50 states, but every state has its own version of the ADA that applies to websites that are located within the state or that do business in the state. While they are mostly like the ADA, some of them are specifically different. In theory, you’ve got 50 additional laws to learn about. Then numerous city and other local laws concern accessibility and might concern accessibility of websites as well. This includes, most noticeably, New York City’s human rights law, which has been the source of litigation. We have a lot of laws concerning accessibility, many of which specifically concern websites.

The good news, if you are a developer and your clients are private businesses, the ADA is the law that you need to know about. You probably don’t need to know about the others unless you’re working for a federal agency, working for an airline, or, in some cases, working for- I see we have some university people, for example. Hospitals and universities that get federal aid will have to comply with Section 508 of the Rehabilitation Act. You’ve got another law to deal with besides the ADA and you may get federal funding that comes with strings as well.

For most people in the development business, the ADA is the law that matters for reasons that will become clear in a minute, the ADA is the law I’m going to talk about. For those who are not in the United States, if your website does business in the United States, you probably need to think about these laws as well. I recently had a client call me from the UK. They are a substantial business in the UK, but their website sells goods in the United States. Same thing with an Irish client a few years ago. The United States is a big market, so even if you’re overseas, you may find it desirable to be familiar with U.S. law.

Bad news now. There is no legal accessibility standard for privately owned websites. By privately owned websites, I mean, websites that are ordinary businesses. It could be a big business like Amazon. It could be a little business like Joe’s Pizzeria. From top to bottom of the scale, there is no legal accessibility standard. People will tell you differently than that, but it’s true. The ADA, which covers these private businesses, never once mentions the internet, it never mentions applications because when the ADA was passed, those things were in their infancy, and Congress didn’t think about it.

Title III, which is the one title of the ADA that covers private businesses in their interactions with the public, requires accessibility in general terms. It may require accessibility for websites of standalone businesses, but it may not, and there are no regulations to define just what it means for a website to be accessible anyway. Title I of the ADA covers private businesses as they interact with their employees. Once again, we have no regulations that define accessibility. For these laws, especially Title III, accessible ultimately means whatever some federal judge thinks it means. At present, there are more than 500 federal judges in the United States, which means you could have 500 different opinions about whether a website is accessible or not.

The good news is that pretty much everybody seems to be on board with the idea that conforming to WCAG 2.x, at success level AA, is a definition of accessibility. This is what the Department of Justice believes and the area that DOJ has issued regulations, which is what are called Title II entities, and that is municipalities and certain state agencies, the regulations essentially adopted WCAG 2.1. Under the Rehabilitation Act, the Access Board adopted WCAG 2.0. The Air Carrier Access Act adopted WCAG 2.0, all at success level AA. Many courts that didn’t want to face the confusing question of what is and is not accessible, have simply accepted that WCAG 2.-something is a definition of accessibility for a website.

Despite the fact that under Title III, we have no regulations, and I’ll just, as an aside, will tell you that shortly before the last election, the Department of Justice was on the verge of publishing Title III website accessibility regulations. It was also on the point of doing that shortly before the first time President Trump was elected. His administration killed the regulations the first time around. It’s virtually certain they will kill these regulations the second time around. we’re four years away from regulations defining accessibility under Title III. Nonetheless, we’ve got broad agreement that WCAG 2.x is the technical definition of accessibility.

Bad news. No one knows for certain whether Title III of the ADA covers internet or app-only businesses. There is no doubt that if you have a physical store, an antique store, a record store, let’s say, and you have a website, that website needs to be accessible because it is a service of a public accommodation. The ADA covers, or Title III of the ADA covers public accommodations, and, in fact, lists 10 categories of public accommodations, but they’re all places. Some courts, including the very important Ninth Circuit, which covers California, have said, “Title III of the ADA just doesn’t cover a website-only business, because to be covered by Title III of the ADA, you have to have a physical structure that’s open to the public.”

However, other circuits, including the Seventh Circuit, disagree. They say, “If you are doing business with the public, even if it’s only through a website or app, you are covered by Title III of the ADA because you are a public accommodation, and therefore your standalone website has to be accessible. They still don’t know what accessible means, but they’re quite clear that you have to be accessible.

The bad news is, depending on what state you’re in, and sometimes depending on what court you’re in, in New York, for example, the Court of Appeals that covers New York, which is the Second Circuit, has not ruled on this issue definitively, and individual federal judges in the Second Circuit, typically in the Southern District and Eastern Districts of New York, disagree. If you get assigned to one court, the judge may say, “The ADA Title III does not apply to your website, internet-only business.” The judge down the hall might say it does. There’s a good deal of uncertainty here.

The good news, kind of, is that it doesn’t really matter. Regardless of whether a website is associated with a physical store or is an internet-only business, it can be accessed anywhere in the United States. Most businesses that operate on the internet aspire to have customers in all 50 states. What that means is that you’ve probably got a customer, or at least a possible customer, who is at a place where the court believes that the ADA Title III applies to your internet-only business.

As a practical matter, you have to assume that a website business has to be accessible because there’s some judge that someone could file suit in their court that believes that’s true. It may not be a sure thing. We’ll wait to see what the Supreme Court says, perhaps in the next several years, but for now, since you can get sued in a place where they believe that Title III covers standalone websites or standalone internet businesses, it doesn’t matter whether someplace else doesn’t think that.

Let’s review the good news and the bad news as we have it. There are four federal laws, dozens of state laws that require websites and apps to be accessible. It is not clear whether any of those laws apply to the website of a private business. It is not clear what accessible means for private business websites. These uncertainties don’t really matter because there is a judge somewhere who thinks that the website you’re working on is covered by Title III of the ADA if it’s not already covered by Section 508 or the Air Carrier Access Act. There’s a judge somewhere who thinks your website is supposed to be accessible. It’s most likely that that judge or the Department of Justice or whomever is trying to enforce the law believes that accessibility is the same thing as WCAG 2.s AA conformance.

At this point, I do want to say one quick thing about the people who have signed on who work for nonprofits. One of the most common misunderstandings about Title III of the ADA has been that it covered private businesses in the sense of businesses that make a profit. It does not. It covers any business that’s open to the public and that includes nonprofits. Nonprofits do not get a pass on website accessibility.

Our next topic, what does accessible mean for a website or app. I told you there’s uncertainty. It might seem like a funny question because we all know about WCAG 2.x, but really there are two ways to look at website accessibility. One is a technical standard, and the technical standard we have available is WCAG 2.x success Level AA, but the statute itself, the ADA, requires that public accommodations provide the full and equal enjoyment of the goods, services, facilities, privileges, and advantages of a website. As I said, we have no Title III regulations. We just have this statement about what accessibility means. It means the full and equal enjoyment of the goods, services, facilities, privileges, and advantages of a website and that is a helpful way to think about accessibility for reasons that I’m going to explain in a minute.

Before we do that, I am going to step in and tread on your toes a little bit as developers because to understand the discussion of accessibility standards and accessibility as a general principle requires looking a little bit at the kind of accessibility problems that people face. If this were a non-expert group, if you were lawyers, for example, I would spend a lot more time than I’m going to on the next few slides, but I want to make sure that we are all starting from the same place about accessibility.

How do disabled people use the web? You’d be surprised how many businesses don’t think that blind people can use the internet, or think that people with other disabilities can’t use the internet or can’t use it effectively. Well, those with disabilities use assistive technology, for example, screen reader software, voice input software, mouse alternatives that interpret gestures. In some cases, disabled people will take advantage of technologies that are actually incorporated into a web page, such as captioning for audio content. A colleague of mine, William Goren, who is severely impaired in his hearing and has some physical problems as well, knows everything there is to know about voice input software and captioning and would be happy to tell you about it if you called him.

In any case, disabled people generally use assistive technology to overcome the difficulties that are faced in what is and really has always been a visually-oriented medium of communication. I mean, the thing that was most exciting, probably for most people, about the internet was you saw it on a computer screen instead of seeing it in a book. The visual experience versus the screen reader experience can be shockingly different. I, by the way, did not have any disabilities. I wear ordinary glasses. That’s not considered a disability. I use hearing aids to compensate for ordinary lack of high-frequency hearing associated with age, also, not considered a disability and not even really a disability.

Individuals with very low vision or who are completely blind use a screen reader. I don’t know how many of you have ever tried to use screen reading technology. VoiceOver is built into the Safari web browser. JAWS is the second or first, most popular screen reader software. Screen readers literally read material that’s on a web page to the blind person who is using the software. They experience the web page entirely through the spoken word. The screen you see here is a close-up of the home button on the first page of an apartment website. This website doesn’t exist anymore. It had to be completely rebuilt for reasons that will become obvious.

When I went to this website, what I saw was that the home item was on a horizontal list of menu items that you could clearly select from. You could use the right and left arrow keys to move back and forth horizontally on that list. On the other hand, a person using screen reader software, if the focus moved to this home button, would hear this, “Visited link, home page, home menu navigation. You are currently on a button. To click this button, press control, option, space.” The screen reader user does not know that there is a menu item to the left. They don’t know there’s a menu item to the right. They don’t know whether there’s a menu item above or below. All they know is what I just read you.

Now suppose they want to go to the next thing because being on the home button isn’t very interesting and they hit the tab key. On this website, the tab key took them to a different web page and put them on a menu called bedrooms where they would be told bedrooms, button, main. You are currently on a button. To click this button, press control, option, space. Now if they clicked control, option, space, it would open up a menu of bedroom, numbers of bedrooms for this apartment complex. If they realized that they had now been transported somewhere in the website that they didn’t really want to be and clicked shift, tab, try to go backwards, it would take them back to the home page of the website but not back to the home button. It would be as if they had entered the website again for the very first time.

This is a not accessible website because it is extremely difficult for a person using a screen reader to figure out how to navigate since they don’t know, for example, that there are menu items on the right of the home button. If they try to use up, down, or left arrows, nothing happens. If they use the right arrow, they may or may not learn from the text of the associated menu item that there’s a pulldown menu there. Anyway, this website was bad. One way to define accessibility, keeping these kinds of experiences in mind, is to say an accessible website or mobile app works with assistive technology to provide reasonably equal access to the content of the website or mobile app.

Now, notice I’ve said reasonably equal. It’s clear that someone with a disability is never going to have an equal experience of a website. If it’s a visual medium if it uses a lot of images, a blind person is not going to get an equal experience. They are going to get what they need to say, reasonably equal experience. The same with people who are deaf. Captioning will tell you what sounds are going on or what words are being spoken, but it won’t tell you the tone of voice. It won’t convey all the things that audio information can convey. You’re looking for reasonably equal access.

However, reasonable is a hard word to define, and website development takes place in the realm of computer code. Ultimately, ones and zeros, offs and ons, black and white, it’s ultimately, completely binary. Someday we may have quantum computers that can deal with uncertainty, but right now, a definition like this that uses the word reasonably is a definition that is way too slippery to be of practical help when you’re designing a website, which brings us back to the technical approach, WCAG 2.x, published by the World Wide Web Consortium. It’s always sounded to me like a villain in a Bond movie, frankly. W3C has published this along with the standards that make our browsers work together all across the world. It is a highly technical definition of accessibility.

The last examples I was giving you of this apartment website would have these failures under WCAG 2.1. There’s a success criteria 2.4.6, violation, headings and labels describe topic and purpose, a 3.3.2, success criteria, failure, labels or instructions are provided when content requires input, a 3.2.4, non-conformance components that have the same functionality within a set of web pages are identified consistently. That’s that tab key that takes you to some random place in the universe, and, of course, my favorite 4.1.2, for all user interface components, including but not limited to form elements, links, and components generated by scripts. The name and role can be programmatically determined, states properties and values that can be set by the user can be programmatically set and notification of changes to these items is available to user agents, including assistive technologies.

Now that’s a technical approach to website accessibility. Instead of saying, “Wow, this is tough,” because the tab key takes you some random place, this defines what it should have done in terms of being perfectly consistent and working with assistive technology. There’s still a problem here. The Web Content Accessibility Guidelines, as much as they appear to be objective, incorporate a good deal of subjectivity as this next slide illustrates.

I’ve put the alt text on this image on the left for those who are not using assistive technology. The alt text for this is, “One woman looking surprised and clutching her dress.” Now, that alt text is there because the very first of the WCAG success criteria is that 1.1 requires text alternatives to images. That’s the text alternative. 1.1.1 says all non-text content that is presented to the user has a text alternative that serves the equivalent purpose. All right. Now, what we see here is a pretty good short description of the picture, but what is the purpose of this image?

Well, the purpose of this image is that it is clickbait. It appears over a clickable caption that says, “27 most unforgettable wardrobe malfunctions in recent memory.” Presumably, the website owner believed that people who saw this image and thought something about a wardrobe malfunction would think that if they clicked on it, they would see a picture of a perhaps more exposed breast on this woman or at least something equally titillating. If we want to have a text alternative that serves the equivalent purpose, we might more accurately put alt text for this image that says clickbait. Of course, that doesn’t serve the purpose because a person who is blind, who hears the alt text clickbait, is unlikely to click.

Now, we could put something else. We could put, for example, a description of what, in fact, the owner thinks will happen. The description could be, “Click here to see a partially naked woman,” but, of course, the blind user, who’s using alt text doesn’t really care about that since the alt text for that is just going to be what he just heard, a picture with a woman’s breast shown. You could serve the same purpose as this picture, that it’s clickbait purpose, by putting click for important information about your finances. Now, that has nothing to do with the picture, but it might serve the purpose of enticing someone into clicking.

What this illustrates is that as soon as you include the word purpose in your definition of what a text alternative has to do, you’ve put in automatically that you need to know what the website owner was intending to accomplish with that picture. That’s something the developer probably doesn’t know, and if the website developer does know it, it may be something that is very hard to put in alternative text in a meaningful way. WCAG 2.x AA, despite its technical rigor, has problems.

Another way that WCAG 2.x can fail is simply that it has requirements that are not relevant to the main purpose of a website or application. I’m going to illustrate this with a picture of my own website, Hunt Huey PLLC. Courageous advocacy, honest advice, and faithful representation, that’s our motto. Let’s look at the items on this page for which WCAG 2.x would require some form of accessibility. On the lower right-hand corner, you can’t quite read it on this slide, there’s a copyright notice and a notice required by the Texas Ethics Rules for attorneys that says, “I am responsible for the website.” It provides, as the ethics rules require, a phone number so that somebody can call me if they’re unhappy about the website. In the years that this website has been up, no one has ever called me to complain.

If this link were not accessible or were not legible for some reason, would it really make this website inaccessible as a practical matter? I don’t really think so. Now, down in the footer, the part of the web page that people frankly rarely get to, there are links to my blog, Accessibility Defense, and to my partner’s blog, Legal Ethics Today. These are entirely redundant because the menu item blogs up at the top of the page also has links to those blogs. These clickable links are redundant. If they didn’t function properly, they probably wouldn’t affect the ability of a blind user or any other disabled user to get what they wanted to get out of the website. After all, by the time they get to the footer, they’ve already gone past the menu that says how to get to the blogs, and yet, if not properly coded, these links would be WCAG 2.x AA failures.

There’s a link down here called Accessibility. It takes you to a nice page that says that my partner and I are dedicated to the accessibility of our law practice, including our web page. Once again, it provides my phone number in case anyone has a problem. Now, I have to say, we spent money making sure this website would be accessible, so I’ve never gotten a call. I think the real reason I’ve never gotten a call is that no one has ever looked at our accessibility statement because who cares? If the website is working for you, then you’re not going to click the accessibility statement. If it’s not working for you, you’re probably just going to leave.

There’s a link called Legal. It takes you to the terms and conditions of use of the website, which includes a lot of CYA material included to discourage anyone, disabled or not, from being mad at us or suing us. It’s all required by our malpractice carrier. I doubt if anyone has ever clicked the link. Frankly, there’s a lot of other content in this website that would not matter much if someone couldn’t get to it. We have tons and tons of text reflecting things we did over the last many years. It’s primarily there because it improves our SEO. If it was inaccessible to someone who was looking around our website for stuff, it wouldn’t make any difference because it would be so outdated, they wouldn’t want to see it anyway.

This is an inherent problem in any technical standard. WCAG can tell you how to make a thing accessible, but it can’t tell you whether the thing you’re making accessible is important or not, which leads to this, “So much code, so little time.” I want to thank the people at plan.io, which is a company that sells project management software because I stole their picture and I’m announcing their name in hopes they won’t sue me for copyright infringement. This illustrates the problems. You only have so many resources, you’ve got a lot of stuff to do, and accessibility can be expensive.

Business owners and these business owners are often my clients, ask two questions about accessibility. First, how much business will I lose if my website is not accessible? It turns out that statistics indicate that they lose more than they think, frankly, but if the answer is it costs more to make my website accessible than I will get in return in profits, then from a business standpoint, accessibility doesn’t make sense. Similar question, “If I don’t follow the law, how likely is it that I will be sued?” Another cold, hard question that businesses ask. Litigation costs money. You spend money on accessibility to avoid litigation. If accessibility doesn’t help you avoid litigation, aren’t you just wasting your money?

Well, that’s from the standpoint of a purely rational profit-based business, which is what most businesses aspire to be. In fact, of course, the law requires accessibility, and being good requires accessibility. Once again, how much money can you invest in an accessible website if that investment doesn’t have some kind of return in terms of money? Now, those are the problems with the technical approach. You have to remember, DOJ, that’s the Department of Justice, and the Access Board, which covers accessibility for federal agencies, favor the technical approach. They favor WCAG in one version or another. Which version the regulations call for depends largely on which version existed when those regulations were put into effect.

The courts like WCAG 2.x AA because it makes it easier for the judge to say whether a website is or is not accessible. We don’t have much choice but to talk about accessibility in terms of WCAG 2.x AA. However, we’ve got to remember, as we talk about that technical standard, to keep in mind the question, is this work that I’m doing really making the website accessible in a meaningful way? If my goal is to make the website accessible in a meaningful way, where should I devote my resources?

The easy thing to do with website problems involving alt text is to put some alt text on every picture. In fact, software will generate that alt text for you, but he time you spend doing that will not be nearly as helpful as time you spend repairing a checkout process, for example, or some system that’s really critical to the website’s operation than a person using a screen reader or a person who is deaf cannot use. A technical standard is great but you cannot forget meaningful accessibility, that is the reasonably equal use and enjoyment of the website for the purposes that it was designed for.

Next, we’re going to talk about AI. Surely AI will save us. Well, no. There is some technical stuff that you probably know better than I do. This information on the next slide describes three layers of a typical website. I got it from Jason Taylor, the chief innovation strategist at a company called UsableNet. They’re an accessibility consulting and software company. I took it from a presentation we did together a few years ago. Three levels, control and view, based on mostly cascading style sheets, then organize and identify, based mostly on HTML, and then functions and interactions, which are components generated with tools whose names I don’t understand, but I say, I read them to you, vue.js, react.js, angular.js, and HTML5. This is where all the cool stuff happens. The first two layers are where the website is made informative.

Software solutions, consisting mostly of widgets or overlays, can do things to change color, contrast, and other items that are affected by CSS, the style sheets. They really don’t control anything that’s helpful to a person who’s blind using a screen reader. Some widgets claim that they can update code on the second layer using AI and may even be somewhat successful in doing that. Overlays, the same issue, whether it’s a widget or an overlay, it can directly address CSS problems. It can address pretty well some HTML problems, but neither of these software products can really dig into the level three, the code level because there’s just not AI that can understand the problems and the interactions of the code and what they do.

What I’ve heard, and once again, I’m relying very much on the experts that I talked to in the course of defending lawsuits, widgets and overlays cannot update the actual code in the third layer where interaction components offer functionality. Sites that are only informational in nature and only rely mostly on the first two layers can benefit from a widget or overlay. Sites have been to larger companies that have interactions like purchasing, booking, updating and accounts, those cannot be fixed by software. They have to be manually tested and manually fixed by developers. That’s the technical stuff. That’s what the software guys tell me.

As a lawyer, here’s what I know. The FTC ordered on January 3rd or announced on January 3rd an order requiring the online marketer, and it’s accessiBe is the online marketer, to pay a million dollars for deceptive claims that it’s AI product could make websites compliant with accessibility guidelines. The Federal Trade Commission doesn’t think that accessiBe does what it’s advertised to do. Although accessiBe is the most aggressive, I think, of the software people who claim to be able to fix a website with software, it’s not by any means the only one.

Another thing I know as a lawyer, do you want to get sued? According to UsableNet, 25% of all website accessibility lawsuits in 2024 explicitly said that widgets or overlays were barriers to accessibility rather than solutions. Rather than a quick fix to ADA compliance, these things actually made it harder for people, particularly screen reader users, to use the website.

The other thing I can do as a lawyer, you’re trained at this in law school, is I can read the fine print. If you go to the accessiBe website or the website of any other company that markets widgets and overlays to fix websites, you’ll find this. Down at paragraph 4.2 of the terms and uses conditions, “Neither the access widget nor access flow address or resolve certain accessibility issues known as the excluded issues.”

Now, I’m sorry if you cannot read the excluded issues type. That’s because there are so many of them that to make it fit on the slide, I had to make the type very, very small. Suffice it to say that whatever it says on the front page of the accessiBe website or similar products, I don’t want to just pick on accessiBe, but no matter what it says on the front page about fixing web pages, buried down in the terms and conditions is the thing that says, “Well, not really.”

Finally, I think most persuasive for me with respect to software, the National Association of the Blind press release on June 24th, 2021. In this press release, they announced that they were not going to accept accessiBe as a sponsor of one of their conferences because they believe that accessiBe currently engages in behavior that is harmful to the advancement of blind people in society. The reason they believe that accessiBe was harmful was because accessiBe was persuading website owners that they could make their website accessible to people who are blind by installing the accessiBe widget and thus essentially fooling people into believing that they were doing the right thing when they weren’t.

What about software solutions? Well, software is pretty good for things in the CSS and HTML layers of a website. It’s probably not perfect, but it’s pretty good. It might work for things in the code layer, but not reliably. The only real solution to website accessibility is to manually identify accessibility problems and fix the code that causes them. The people who are letting me talk tonight sell a product that helps you identify accessibility problems in WordPress sites.

That’s actually a great thing to do because you need somewhere to start on a website making it accessible, and software that locates problems so that you can figure out how to fix them is a critical step. Even the most sophisticated and most expensive accessibility consulting firms start with a software scan. The key is, however, you can’t end with a software scan and you can’t end with a widget if you expect to have an accessible website.

That brings us to the fourth thing we’re going to talk about. Oh, I forgot. I’ve got a Tom Petty quote. Tom Petty’s famous song, There Ain’t No Easy Way Out, that is the answer. For a website to be accessible, there is no easy way out. You can do a lot with software, but ultimately, for a reasonably complicated website, the solution is a trained user with screen reader or other adaptive technology starting at the top of the website and trying to go through every function that the website allows a person who is not disabled to perform and seeing what fails, and then fixing it as they go along.

The last topic is website accessibility litigation. This is something that people are very interested in because it really attracts their attention when they get sued. I’m sure those of you who represent small businesses may have had your clients be sued or receive demand letters. Litigation is worth talking about, but it’s also worth understanding. Now, the first thing to know is that website accessibility litigation is not going away. Seyfarth Shaw’s ADA Title III blog is the source of this chart. The numbers are a little small, but the thrust of it is that between 2017 and 2024, there have been a couple of upticks in the number of lawsuits filed, but we’ve leveled out at around 4,100 or 4,200 federal lawsuits a year.

Now, this is only federal lawsuits. Lawsuits filed in state court have become more numerous. If we had the same slide showing state court lawsuits, it would show a pretty sharp spike around 2019 or 2020 because of various legal developments, but that’s kind of leveled out now as well. ADA Title III lawsuits concerning websites are going to continue moving along at a rate of 4,100, 4,200 cases a year, maybe with the occasional spike.

The second thing to know about accessibility litigation is it is just another kind of serial litigation. This is a terrible pun, and I apologize. That’s a picture of Captain Crunch who sells cereal, but we’re talking about serial, S-E-R-I-A-L litigation. This is litigation that has a relatively small number of individual plaintiffs who file many, many, many lawsuits, usually using one or two law firms. 99% of the lawsuits involving website accessibility are serial litigation. That means they share some common characteristics. They are controlled by lawyers. The plaintiff, in my opinion, is just a front for the law firm. The goal is the settlement and a quick profit to the lawyer.

Now, price of settlement is below the likely cost of a basic defense to the lawsuit. In other words, the plaintiff doesn’t want to have to fight hard to win, so they will settle cheaply, so cheaply, in fact, that it doesn’t make any sense to fight back because it’s easier to settle than to fight. Remediation is always part of the settlement. In order to hold their heads up high, the plaintiff’s lawyers have to insist that they wanted the website to be remediated, and you will have to agree to remediate it as part of the settlement. Whether that agreement has to have any teeth or not is a different matter, but there will be at least a nod toward an agreement to remediate the website.

Frankly, a website that’s not accessible to people who are disabled should be remediated anyway because you don’t want to lose customers and you want to do the right thing, and ultimately it is the law. I can tell you that these private lawsuits in the serial litigation category, which are very easy to settle early and cheap, are completely different from a lawsuit brought by the Department of Justice, which is not easy to settle, not cheap, and if there’s an agreement to remediate a website, it will have teeth. You want an accessible website, but serial litigation is its own special thing.

It’s key when talking about this kind of litigation to understand that the merits of the case don’t matter. It may be that for all practical purposes, the website you’ve developed is perfectly accessible to people with disabilities. Maybe there’s some alt text missing on a couple of images that nobody cares about. Maybe there’s an unlabeled link that does something weird, but no one would ever click it anyway. That doesn’t matter because the point of the lawsuit is simply to bring you to the table to settle. In every case, you can settle for less than the cost of any defense that might succeed.

I have said this now twice on two slides because there are a lot of lawyers who advertise all of the interesting and possibly effective defenses that they can use when the website has been sued. In my opinion, these lawyers are just looking for ways to make money. They are not trying to solve the problem. The problem is you’ve got a lawsuit that you want to get rid of. That’s why, besides time, I’m skipping the next dozen or so slides. The first time I gave a webinar about ADA litigation was in early 2016, which was when there was a real jump in this kind of litigation.

I spent almost an hour discussing all of the interesting legal theories and issues concerning what it meant for a website to be accessible, why websites had to be accessible under Title III of the ADA, why they didn’t have to be, whether people who filed the lawsuits had standing to sue. What districts did and did not say they needed to be accessible if it was internet-only businesses. We’re going to skip all that because it doesn’t matter where you get sued and all those fascinating legal issues, fascinating to me, don’t matter.

Now, I do want to emphasize one thing here. If you or your client is irrationally angry and very rich, I want them for a client and I will take their case all the way to the Supreme Court, I promise, but I won’t advise them that it’s a good idea. Appearances in this area of litigation are, however, deceiving. Whether it’s a Title III lawsuit or a state law website lawsuit, they all look pretty much the same. The petitions are very long. They tend to have pages of stuff about how Congress intended that the ADA would make society better and the economy more accessible to people with disabilities.

They go on and on and on so they all kind of look the same but the resolution of these lawsuits depends very much on who filed the lawsuit and when they filed it. There is a category of plaintiffs that I call bottom feeders. They don’t want to litigate. I’m sorry. They won’t litigate and they will go away if you give them $1,000. There’s a mid-market group of plaintiff law firms that are more reluctant to fight a lawsuit but they’ll fight if they absolutely have to, but they’d rather settle and they’ll settle for between $6,000 and $10,000 usually.

Finally, there are a group of, what I would call, no-nonsense law firms. These are law firms that mostly have been engaged in this kind of litigation since the very early days, which would have been around 2015, 2016. They are willing to take a case to trial if they have to, to prove their point. It costs more to settle with them. Typically, less than $20,000, more like $15,000. There’s been a development in this kind of litigation. The price of settlement has gone down in the last couple of years.

When these lawsuits were new and exotic and the defendants were mostly large corporations, settlement payments were $50,000 or more. Now we’ve settled down where everyone understands the economics of it. Even the most no-nonsense law firms will take less than $15,000 when they realize they’ve sued somebody who has no money. To respond to this kind of litigation, it’s very important to know who the lawyer is and where they stand on this range of possible settlements.

If you don’t know what the market is, you don’t know how much you’re going to have to pay or how much your customer is going to have to pay. The risk to developers. This, I assume, is something that everybody is interested here, on, if it’s here. In theory, a website or app developer may be a person who operates a place of public accommodation. That is, if you develop a website and are responsible on a day-to-day basis for maintenance and content, then the developer could have direct liability under Title III of the ADA.

It depends very much on the day-to-day role in keeping the website operating. Another theory is that a website developer could be similar to an architect or builder. Under the ADA, architects and builders are responsible for what they build or what they design. If you call a website developer a builder of websites, you might say that by analogy, the developer could be liable under Title III of the ADA. In fact, I am not aware of any lawsuits against developers based on a violation of Title III of the ADA.

The plaintiff’s lawyers seem interested almost exclusively in suing the owners of websites because they perceive that that’s where they’re most likely to get paid. However, you need to check your contract. Website owners are increasingly including an obligation to make the website accessible in their contracts. I advise my clients to do this. I say, “Ask your developer to agree that they’ll build you an accessible website.”

If you have promised to build an accessible website and you don’t, then when the owner gets sued, you may find that the owner has decided to blame you for their problems. This has happened to a few of my clients that were on the development side. This means, I think, speaking again as a lawyer, that if you’re using a development contract that you downloaded from the internet, from forms.com or something, you should really think twice about it, or at least you should read it very carefully to make sure that you aren’t promising something that you really can’t deliver.

For all the reasons that I talked about earlier, you really cannot deliver a guaranteed accessible website. The biggest remediation consulting firms in the world will not, after they’ve spent tens or hundreds of thousand of dollars on a website, they will not guarantee that it’s going to be WCAG 2.XAA for more than a few minutes after they finish their last bit of work on it because modern complex websites have too many things that can go wrong. As a developer, you want to be very careful about what you promise to do.

Finally, a pro tip. The plaintiffs use software tools and you can as well. Plaintiffs in ADA website cases typically use software tools that spot WCAG failures. The plaintiffs in these cases, and I’m saying this just based on the sheer number of cases that some of these plaintiffs file, are not going to a website and spending time navigating through it trying to find out what might go wrong. Especially alt text violations.

Now, what they do is they take a software tool, maybe a free tool like the WAVE tool at aim.wave.org or maybe a tool that you have to pay for, but they use a software scanning tool to find the defects in the website. That gives them a chance to file the lawsuit. That’s how they’re finding lawsuits. Now, those tools miss a lot of failures so they’re not completely reliable. They have their purpose, as I said, but they’re not completely reliable.

However, if you use one of those tools to scan your website and you fix all the problems it finds, then you have very likely made the website invisible to these plaintiffs because you and they have taken the same approach. You’re hiding or you’re fixing is a better word for it. You’re fixing the things they’re looking for. There may be other failures, there can be other critical failures, but they won’t be noticed. That gets us to a practical plan of action.

Check your website using a good quality software tool and fix the problems it finds. This is the way to avoid litigation, to avoid being a target of one of these plaintiffs. Then when you’ve done that, check the website with human users who can find the problems that software cannot find and fix those to make the website genuinely accessible. Finally, I don’t have a slide for it, but I do want to say website litigation typically revolves around the code that is owned by the website owner.

If you’re using Shopify or other third-party services like that, you’re typically not required to make them accessible. They are generally excluded from the litigation. It is not clear that they will be excluded if there are regulations or the DOJ would think they’re excluded. One way to protect your website a little bit is to offload to third-party software the most complicated functions, which is something you might do anyway. Let’s wrap this up now.

The key points that we’ve covered. One accessibility law. At least one accessibility law applies to almost every kind of business, nonprofit, or government agency. These laws are inescapable. Whether ADA Title III covers online-only businesses is not certain, but your client can be sued in a court that says it does cover their business, and those courts exist in the United States, so there is no comfort in this controversy. Title III of the ADA does not have a regulatory definition of accessible, but WCAG 2.X at success level AA is what DOJ plaintiffs and the courts are looking for.

There is no software or AI solution for accessibility. All such solutions have serious limitations, and ADA website litigation is not going away, but developers are very unlikely to be sued by anyone other than their own customers. I hope that’s good news for most of the people that are listening to this because the last reason for either a website owner or a website developer to be concerned about accessibility is simply the threat that they’re going to get sued.

There are hundreds of thousands of business websites in the United States, and less than 1% of them get sued every year. Litigation gets a lot of attention, and it draws headlines, but the reason to develop accessible websites is because there are disabled people who need to use the website. They need to use it to buy the stuff your client is selling. They need to use it to get the services that your nonprofit offers. They need it to get the education that your university offers. That’s the reason to make websites accessible.

It’s a difficult thing to do. It requires thought rather than simply blind conformance to WCAG, but there’s a reason that it’s worth doing. Where to find me once again, Mia Suit. I just want to be clear. I own more than one suit and a bunch of ties that my wife and children have given me, but this is how to contact me if you would like to follow up on any of this. I believe that now we’re going to have some questions and answers as soon as I stop sharing my screen so that [crosstalk] can come back?

>> AMBER: Before you stop sharing real quick, just for people who can’t see the slide, do you mind reading out the web addresses or whatever information would be good for audio?

>> RICHARD: Sure, I’m sorry. My email address is rhunt@hunthuey.com. That’s H-U-N-T-H-U-E-Y.com. My phone number is 214-641-9182. That’s not the best way to get in touch with me in the age of email. My firm’s website is hunthuey.com, H-U-N-T-H-U-E-Y.com. My blog is accessdefense, A-C-C-E-S-S-D-E-F-E-N-S-E.com. At accessdefense.com, there’s also information about my email address and a subscription link. Several different ways to get in touch with me, and I would love to hear from you. As I said, short questions, I like to discuss these issues. Long questions, I charge to discuss. Thank you.

>> AMBER: Well, thank you so much, Richard. This has been a phenomenal presentation. If anyone has any questions, please feel free to put those in the Q&A and we will work through them. You can also upvote questions. I tend to go by upvote order. Although I might skip around just a little bit if something seems relevant. Shanna had asked a question, which was, “How do all these laws apply to public institutions like art galleries and museums? I’m wondering if you could briefly say what laws would apply to those entities.”

>> RICHARD: Sure. An art gallery or a museum is going to be a Title III entity. That is it’s a public accommodation and because they’re physical places of business, their websites are created as a service of a public accommodation. That means that everywhere, it would be agreed that that website, it has to be accessible.

>> AMBER: That would all fall under the ADA then?

>> RICHARD: Yes, that would all fall into the ADA. If they get federal money, they might fall under Section 508 of the Rehabilitation Act as well but the requirements are the same either way.

>> AMBER: Okay. Let’s see. Another question from Shanna that I thought was interesting was you were talking about contracts. She asked, “What happens if there’s no mention of ADA compliance in a contract and someone tries to sue the web developer?”

>> RICHARD: Oh, well, that is a really good question. I’ll try not to be too equivocal. First, the law that governs that question is different from state to state. There are 50 possible different answers but they’re all going to converge on the idea of what was the reasonable expectation of the person who hired the developer. That, I think, is changing. I would have said, say, 10 years ago, that most business owners didn’t know anything about accessibility and they had no expectation.

Now, as business owners become smarter and smarter about accessibility, their expectations are changing and I think we are headed for the point where a court’s going to say, “Look, being a competent website designer means that you know how to design an accessible website.” We’re going to get to the point where you’re just not doing your job. It would be like a guy that comes out to fix your plumbing and can’t fix the leak. The courts are going to say, website accessibility is fundamental to what developers do.

>> AMBER: Even if there is no mention, it might end up being on the developer anyway.

>> RICHARD: Exactly. The way for the developer to handle that is to put it in the contract and limit what they’re doing so that everybody has the same understanding. Lawsuits that are expensive and go on forever are the lawsuits where nobody writes it down and everybody can argue about what they thought. You write it down, you make it explicit, and you save a lot of trouble.

>> AMBER: On the flip side there, that’s almost like limiting to some degree. You might say, okay, in the scope of this agreement, with the header and the footer and the home page will be accessible or will be WCAG 2.2 AA, right? But all other pages are excluded from accessibility in the scope of this current agreement. Is that what you’re saying? Something like that?

>> RICHARD: Something like that. Although, if I were a developer, I would simply put that I exclude any warranty that the website will be accessible.

>> AMBER: After launch.

>> RICHARD: I would just say we can’t guarantee we’re going to do it and then do your best. It’s a sales point to do it. It’s a good thing to be able to do it right but just remind the customer that you can’t necessarily agree to it. To the extent that you define accessibility using software tools, then sure, you can say, “In fact, I just worked on a contract for a client where we agreed that using AXE tool-

>> AMBER: AXE for Deque.

>> RICHARD: -we agreed that the website would not show any non-conformance when scanned with the AXE tool.” That was very clear. Exactly what we had to do. Scan it, fix it, but we weren’t agreeing that it would be generally accessible because we couldn’t guarantee that the AXE tool would find all the problems. That’s the approach I think would probably make the customer feel better because you’re guaranteeing something. Just don’t guarantee what you can’t necessarily deliver at reasonable cost.

>> AMBER: Maybe that’s a sales point for a web developer, where you say, “This is what I can do at this price point.” You want more than we have to go up to account for that, if you want user testing or anything like that.

>> RICHARD: Right, exactly. If you think you need user testing, that’s expensive. Build it into the price and make it available.

>> AMBER: Amy Lee said, “Richard, can you provide any case law examples for the full and equal enjoyment language?” Amy says, “I’d like to be able to cite that for my law school clients without actually having to search and find and read it myself.” Do you know any case law on that?

>> RICHARD: I couldn’t cite a case law, but that language actually came from the statute. It’s 42 USC section 12182(a). That’s A, close prints. That’s the language from what the ADA specifically requires. It says, basically, that public accommodations will not discriminate in providing the full and equal use. All those words. That’s where it comes from, is the statute itself.

>> AMBER: Okay, great. Marsha asked a question which has been coming up at the top of my social media feeds quite intensely in the past week. I live in Texas. You live in Texas. Can you comment at all on the Texas lawsuit where our attorney general and some other states have signed on and they are asking for section 504 and some other things? Do you have any idea how this might go? Do they want to get rid of section 504?

>> RICHARD: Yes. Well, I think I can say something about it. First, they’re not actually trying to get rid of section 504. That’s what some of the headlines have said. They’re specifically concerned with an executive order from the Biden administration that says gender dysphoria constitutes a disability. That would mean that trans individuals would have some rights under section 504 and the plaintiffs in that lawsuit do not seem to like trans individuals. They want just that narrow thing kicked out.

>> AMBER: It’s interesting because I read it, though, because it also says in there, there’s a number where it says section 504 is unconstitutional because it limits the ability to get funding.

>> RICHARD: Right. I think that’s a broader attack, but I don’t think it’s a serious attack because section 504 has been in effect. The section 504’s origins were after World War I when it was passed to make sure that wounded veterans could get jobs in the government. It’s a law that has been around so long that I don’t think there’s much chance that anyone’s going to say that’s unconstitutional, even the current Supreme Court. This gender dysphoria thing is a different issue.

It’s a great, fascinating issue because you may have seen that the ADA and section 504 have carve-outs for gender-related things, homosexuality, transvestitism, a word that nobody uses anymore. Interestingly enough, those carve-outs were not because Congress was prejudiced against people who were gay or had other sexual orientations. It was because they didn’t want those people to be called disabled. They did not want a law that said that you were disabled if you were homosexual so they carved those things out.

I don’t think they anticipated that 25 years later, more conservative politicians would turn it around and say, “No, we’re insisting on the right to be prejudiced against these people and we don’t want the statute to limit it.” It’s a great, interesting topic. Not directly related to webpages.

>> AMBER: I’m assuming this is something that’ll go on for quite a while. We won’t have an immediate answer, but it sounds like you’re saying that people who are concerned about section 504 being deemed unconstitutional, you don’t think that’s a big worry?

>> RICHARD: I don’t think that’s a big worry. I don’t. I’d have to read more about it to see whether the gender dysphoria Biden administration guidance might have some regulatory weaknesses because of the way it went out but I don’t think section 504 is going away.

>> AMBER: Okay, thank you. Gene said, “For municipal websites, will the town be liable in a lawsuit if the documents they post, minutes, ordinances are not accessible?”

>> RICHARD: The Department of Justice just published a guidance on archive materials for municipalities. Basically it says that the old stuff that was around before the regulations went into effect, you can keep it without making it accessible but if you add new material, the content should be accessible. The good news on municipalities because this is going to be a difficult job for small municipalities, just like for small businesses. The good news is that there has been very little litigation against cities and towns under Title II of the ADA regarding website accessibility.

There was a guy in Florida who filed a bunch of lawsuits and the courts said, “No, you can’t sue a municipality if you don’t live there because the website’s only for people who live there.” That died down and I think most municipalities will have time to adjust without much risk of litigation.

>> AMBER: Do you feel like there’s any risk to that rule that went out early last year, giving the timeline for WCAG conformance for that to change? Or do you think that will stay in place?

>> RICHARD: I imagine it will stay in place. At the beginning of the first Trump administration, the Department of Justice did a house cleaning where they took a bunch of older material about Title III of the ADA off their website. Some of it was redundant, some of it was out of date. They cleaned it up, but they didn’t try to change any of the existing regulations. I suspect the same thing will be true here. I don’t think we’re going to get any new regulations from an administration that doesn’t like regulations, but getting rid of a regulation takes almost as long as passing it so I suspect that’s not where they’re going to invest their energy.

>> AMBER: Okay. I’m going to try and get through a few of these quickly because we only have our captioner for just a few more minutes and I know we’re at time. I want to ask you first, do you have like 5 or 10 more minutes to try and do a few more questions or do you need to hop off?

>> RICHARD: No, I’m fine. Both of my cats are asleep, not bothering me. That means we’re good.

>> AMBER: [laughs] That’s good. All right. Joe asked, “How does this presentation go over to your other audiences, other lawyers or businesses? Have you noticed a shift in attitude at all recently?”

>> RICHARD: Lawyers that I talked to mostly are just interested because this had never occurred to them. The shocking thing that lawyers have to learn is that law firms are public accommodations under Title III of the ADA and therefore our websites should be accessible. When lawyers hear that the laws apply to them, they’re always taken aback. I think with businesses, there’s been a slow recognition that, in fact, blind people, mostly– When we talk about websites and disabilities, it’s almost all blind people, frankly.

They are figuring out that people who are blind use the internet and they use the internet to buy stuff and so they’re coming around to the notion that they need to make their website accessible for business purposes. There have been some good statistics gathered. I don’t have them at my fingertips indicating that screen reader users who click into a website that’s hard to use almost immediately click away and go find a different, easier to use website. I think businesses are becoming more receptive as they realize that this is money they’re losing.

>> AMBER: Sorry, I muted myself because I had a little person pop in here for just a sec.

>> RICHARD: I saw that.

>> AMBER: That makes sense. I think it seems like generally, they’re still moving in that direction. Everyone thinking that.

>> RICHARD: There’s not complete realization.

>> AMBER: A quick clarification. You said at one point that sometimes third-party softwares or integrations like Shopify are not usually included in needing to be made accessible. The person says cannot be sued. Do you want to clarify a little bit what you meant there?

>> RICHARD: Sure. I said it a little quickly. A typical website accessibility lawsuit will attack the parts of the website that the owner controls. If you use Shopify to check out and the Shopify checkout experience is not accessible for some reason, that will usually not be a claim in the lawsuit against the website owner that uses that third-party service. Correspondingly, when you settle this kind of lawsuit, there’s usually a carve out.

The owner of the website usually agrees that within 18 months, they will bring their website into conformance with WCAG 2.2 these days, success level AA, but they don’t agree that that will apply to any third-party services that they access through the website or to other websites they link to like Facebook or Instagram or whatever. These are carved out of the litigation at both ends, both at the beginning and the back end.

>> AMBER: I think one thing that you said, which is worth highlighting again, because this is an experience we’ve had, is that while that might be the case for the business websites, it’s not always the case for universities or other entities. If they’re perhaps having to work with the Office of Civil Rights or the Justice Department, they might not give those same exceptions where your other software is excluded.

>> RICHARD: That’s right. The government is much more detail-oriented when it comes to the people who get federal money and so they’re much less likely to say, “You can just push all your functionality off to third parties and we won’t care if it works or not.” Although it is interesting that the latest Department of Government Accountability Office, the GAO surveys indicates that something like 45% of federal government websites do not meet the requirements of Section 508. The federal government is actually doing worse in many ways than private businesses, but you can’t sue them.

>> AMBER: There’s a few– The questions that we have left are not mostly legal so I don’t know if we want to go too in depth on them. Andy had asked, and I don’t know if you’ve ever heard this, where one of your clients or anyone you know of was concerned about SEO getting in the way of accessibility. Do you ever hear people say, “I don’t want to make my website accessible because I think it won’t be good for it,” anything like that?

>> RICHARD: I’ve never heard that accessibility was bad for SEO. I can imagine a blind person who has to use a screen reader complaining that all of the junk that SEO specialists will pack into the non-visible parts of the website can interfere with the screen reader because the screen reader can’t skip that stuff. I can imagine that complaint, but I’ve never heard it.

>> AMBER: I haven’t heard that either. I think mostly making a website more accessible helps for SEO. Just finally, do you see any future where making a website accessible could be on someone other than the developer? Andy had asked, “Do you think self-assessing websites would be in the future?” Or anything else beyond hoping that developers will comply?

>> RICHARD: I don’t think so. I do think that the people who sell the tools that developers use should be paying more attention to whether their tools make it either easier or even necessary to design accessible websites. I’m not a developer so I’m not familiar with all those tools, but I have to imagine that developers are using tools that could be improved in terms of providing a relatively quick way to turn out a website that is nonetheless accessible.

I think the people who make these tools are ultimately going to be responsible for accessibility in the sense that most developers are not going to be able to build a modern website with a lot of functionality unless they use third-party tools. If those tools don’t help them make accessible websites, they’re not going to be able to make accessible websites.

>> AMBER: We actually talked about this a little bit when we were talking about WordPress themes before we went live, in our chatter, that it’s challenging that there are a lot of themes and plugins and things on WordPress websites that aren’t accessible or they add a lot of problems and make it difficult for average users or even the professionals that rely on those tools to build websites.

I know personally with this meetup, that’s been a goal that I’ve had is to try and educate the plugin developers and the theme developers on what they can be doing to make their tools accessible so then whoever used them to build websites won’t have to worry about problems that come from their tools.

>> RICHARD: Right, exactly.

>> AMBER: I think we don’t have enough time to go into the final question about accessibility for businesses that are creating with WordPress. What I would say is we talked about we have a plugin, which is a great place to start. There’s a free version of it, but really doing a lot of testing. What I would recommend for this person who asked this question is go look at all the recordings from past meetups. There’s a ton of different videos that might help you with finding out ways to make things accessible.

Thank you again so much, Richard, for coming and staying a little extra to answer everyone’s questions. We very much appreciate it.

>> RICHARD: I’m happy to do it. Thanks for inviting me. Invite me again sometime.

>> AMBER: Yes, thank you.

>> RICHARD: Sure. Bye.

>> AMBER: Have a good night, everyone.

Download “The Law of Accessible Websites and Applications” PowerPoint presentation.